Call today for a free initial chat with an Employment Lawyer on (09) 214 5780.*
If an employer wishes to take disciplinary action (i.e. formal warning, demotion, dismissal) against an employee for misconduct or serious misconduct, they must:
- Have a good reason to do so; and
- Follow a fair procedure.
Failure to do so is likely to result in a claim for unjustified dismissal (see Unjustified Dismissal) or unjustified disadvantage (see Unjustified Disadvantage).
At a minimum, the employer should:
- Follow any applicable internal procedures
- Fairly investigate the allegations against the employee
- Invite the employee to a disciplinary meeting
- Advise the employee of his or her right to have a support person at the disciplinary meeting
- Provide the employee with all relevant evidence in advance of the meeting
- Not make a decision until the employee’s response has been considered
- If the allegation of misconduct is upheld, give the employee an opportunity to comment on the proposed penalty and not reach a final view on penalty until those comments have been considered
If the employer wishes to suspend the employee during the investigation, it:
- Must have a good reason to do so
- Must follow a fair procedure including allowing the employee to comment on the proposal to suspend before making a decision
- Will usually need to have a right to suspend in the employment agreement
Unless the employee’s actions amount to serious misconduct, the employer should not dismiss the employee without first having given sufficient warnings. There is no statutory requirement to use a particular sequences of warnings, however, many employers use the following sequence:
| First offence: | Verbal warning |
| Second offence: | Written warning |
| Third offence: | Final written warning |
| Fourth offence: | Dismissal |
Summary dismissal is dismissal without notice or payment in lieu of notice. Summary dismissal is usually only justifiable where the employee has committed serious misconduct. Summary dismissal does not mean that the employer does not have to investigate the alleged misconduct or follow a fair procedure.
If you have been accused of misconduct or serious misconduct, contact us on (09) 214 5780.
* Provided we do have a conflict of interest and that there is no other reason why we could not act, we are happy to have initial 15 minute telephone consultation free of charge.
Disclaimer: The above information is for information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on the information given.